Planning your Digital Legacy
More and more of us are beginning to live our lives on line, store our photographs on the web and even buy books, music and films in electronic format. How often, however, do we think about what will happen to all of this digital property should anything happen to us? Will our music files, Facebook pages, e-books and online accounts simply be lost or can we ensure that we make them available to our children and heirs? In this article, Duncan Finlyson, a solicitor with Richard Nelson LLP, looks at what we can and should do to ensure that those to whom we leave our physical property are also able to access our electronic property.
Introduction
The past few years have seen a meteoric rise in the number of people using and owning digital property. Recent statistics have shown that for the first time, the sale of e-books in the US has exceeded 20% of the total book market whilst in other sectors the popularity of online music downloads and videos continues to grow. Not only do we buy things online, we store them online and pay for them online. Many people now have Facebook and Flickr accounts where they store pictures, use PayPal for making online payments and have email, Twitter, MySpace and other accounts that they use for communicating with others.
But stop for a second and ask yourself, what happens to all of these accounts when you die? Who, apart from you, knows where those treasured pictures of the children are stored, which server you hold your music files on or how to access all those important emails about insurance, telephones, investments and utilities? Have you taken steps to ensure that the whereabouts, usernames and passwords have been stored somewhere safely or are your loved ones simply going to lose the value that you have built up, maybe over many years?
Can I leave digital property by Will?
Although it is not something to which the law has given a great deal of thought (the law of inheritance does tend to move very slowly at times) there is no legal reason, other than in relation to copyright, as to why you should not leave your electronic and digital property in exactly the same way as any other property. According to recent research by Rackspace , it is estimated that the value of possessions held among Britons in the 'cloud' now exceeds £2bn, whilst a recent poll of 2,000 adults found that 25% had more than £200 worth of films, video and music stored online.
Clearly, therefore, digital property is becoming a significant asset for many people. Factor into this the value of annual online subscriptions, money held in PayPal and the sentimental value of the millions of photographs held online and it can be seen that anyone planning to make a Will needs to take account not only of their physical assets.
If you leave all of your property to one person, or make a specific gift of a particular piece of electronic property (for example all of your online videos) to one person then the only problems you need to consider is ensuring that they know what you own, where it is held and how it is accessed – including usernames and passwords. Where things become more complicated is where you leave different classes of gifts to different people or where your residuary estate is divided between a number of people.
It would be wise, therefore, to ensure that your Will makes it clear what it is you are leaving, how it should be accessed and who is to get what. If, for example, you have a collection of digital horror films and a one of musicals, you might want to specify a particular directory or folder that contains the horror films so that you can leave everything in that folder to a particular person. You will need also to ensure that they have access only to that folder and that they know the location of the folder, the username and the password. Bear in mind that in most cases you cannot leave the same digital music or film file to more than one person without being in breach of copyright laws.
Likewise, if you have made digital back-ups of DVDs or CDs that you own you should not pass these to anyone other than the person receiving the original of the CD or DVD otherwise you will have distributed works that you are not entitled to distribute. The term “copyright” means the right to copy and that normally rests solely with the copyright owner.
Remember, however, that your Will is going to be become a public document after it has gone through probate so do not include account details or other specific information in the Will. Instead put these into another document - which can always be kept with the Will - which is addressed to the executors and which contains any information which they might require.
Blogs and web sites
You may also have invested a substantial amount of time and effort into creating a blog or a web site. Today, well-established blogs can be a valuable commodity and may have the ability to generate revenue by the carrying of advertising and sponsored links or from product endorsements. If, therefore, you have created a blog or web site you need to think about whether it has a financial value and if so who could benefit from that. Leaving a blog about warfare gaming to your elderly mother may not be the best use of its value.
Think, therefore, if there is anyone who could profit from the blog and if so whether you want to leave it to them or instruct your executors to offer it to them or someone else for sale. You will need to make sure, if you are going to do this, that your executors are aware of its value and how it may be disposed of. Clear instructions – perhaps in a document that is kept separate from your will – may be necessary and in some cases you may even need to think about the use of specialist executors. In cases such as this, using a specialist law firm may be the safest way forward.
If you have a blog or web site and you do want it to continue should anything happen to you then you will also need to make sure that you appoint someone who can ensure that it is continued should you not be able to do so. Again, identifying someone who can do this for you and covering this in a letter or ancillary document may be the best way forward.
Even if you do not think that your Blog has a commercial value, there may be others who would be willing to carry it on after your death. You must make sure, therefore, that you leave full and accurate records of where the blog is hosted and the account names and passwords needed to access it. Don’t forget that there may be different FTP pass words to the blogging passwords used by programmes such as WordPress.
Finally, remember that even after your death the copyright in a blog or web site will vest in your estate who may wish to limit the use of articles which you have posted.
In most cases your email account, and the correspondence it contains, are your own property and it is up to you how you deal with it and what happens to it after your death. There may be limitations on how long it can be used for - for example where you pay a monthly or annual premium to an email provider - or who can have access to the system if, for example, it is hosted on a virtual private network with either an employer or an organisation of which you are a member. However, subject to this how you choose to deal with emails after your death is a matter for you.
It is worth bearing in mind that increasingly many of that personal, household and business correspondence which would have been kept in paper-based files is now dealt with by email and if those who are looking after your estate are to be able to deal with everything effectively, then they will almost certainly need access to your emails. It is therefore important that you make sure that your family or your executors either know your email details or, if you are unhappy about them having that information now, that there is somewhere secure where they can go to find them out.
The downside of not providing your family or executors with the necessary information is that they may be unable to access your emails at all, or only after a substantial delay. Email providers have regularly denied access to families wanting to look at a deceased relative's emails - in some cases resulting in court orders needing to be obtained. In one famous case in 2004, Yahoo! refused email access to the family of a young Marine killed in Iraq and it was not until a court ordered them to provide the family with copies of the emails contained in the account that they were able to gain access. Even then they did not get access to the account itself - just to copies of the emails.
Different email providers take a different approach to the email accounts of deceased account holders. Gmail, for example, will allow next of kin to access emails and to keep the account open for as long as they wish. To get access they will need to supply details of themselves and the account holder, proof of death and proof of their right to access the account (e.g. grant of probate or, if a parent, a birth certificate of the child). Similarly, Hotmail will grant access if you supply proof of your right to access the account - e.g. grant of probate, proof you are a beneficiary or a power of attorney. Bear in mind that often email providers will delete accounts if they are not used or access after a certain length of time so if families want to preserve emails they need to take steps quite quickly.
A further factor that you might also want to take into account is whether you have different classes of email - for example business emails that you are happy for your family to see and love letters to girlfriends that you would probably rather they did not. For that reason you might want to keep two email addresses - one for personal stuff that you are happy to disappear should you die and one for more important issues that you want to be able to be accessed. Alternatively, you may need to get in the habit of keeping your email box cleaned up so that the things you would rather keep private are either exported to a secure file or deleted altogether.
Finally, you might want to bear in mind that your email box is a repository for details of many people whom you might want to be infomed of your death. If therefore you choose not to allow your executors access, you may want to consider keeping, as an alternative, an address box of those with whom you have electronic contact as well as an address book of physical names and addresses.
Social Networking Sites
In addition to emails, many people now have social networking sites of which they are members and into which they may have uploaded a considerable amount of personal data that may be of interest to family and friends. The issues here tend to be a little different from those in relation to email since much of the data on the sites will be accessible by many other people anyway and, provided that family and executors are also involved in those sites, then they may have little problems accessing data to which they have been granted the necessary permissions.
Despite this, there are however a number of issues to which some thought needs to be given.
The first point to bear in mind, and it is something which may apply equally to blogs, is that the person's social networking presence will continue, notwithstanding their death. Therefore, unless steps are taken either to notify those who are connected or to take down the site there is always the danger that embarrassment could arise from comments posted or the person's family be upset by things which appear. For example, friend's who tag a picture with something rude or send status updates might feel uncomfortable if these were done after someone's death. This might particularly be the case in relation to blogs where the deceased person may have set some entries to appear at date's in the future and thus they are giving the impression of still being alive after their death.
Different social networks have different policies to the accounts of those who have died. Facebook will not allow anyone to access the account of someone who has died, although they will, on request, allow the account to become a memorial account. They state that only confirmed friends can see the profile or locate it in a search and that the profile will no longer appear in the "Suggestions" section of the home page. However, friends and family can leave posts in remembrance. They stress, however, that they will not provide login information for the account to anyone. However, once an account has been memorialized, it is completely secure and cannot be accessed or altered by anyone.
MySpace, on the other hand, allows access to a deceased’s account upon verification of death, and a will permit profiles to remain active as memorials. They state that they will only remove or preserve the profile of a deceased user at the request of the next of kin (mother, father, spouse, legally registered domestic partner, son, or daughter) or at the request of the executor of estate.
LinkedIn provide a process whereby the account of a deceased person can be closed by completing a "Verification of Death" form and submitting this to LinkedIn.
Often, social networking sites will be a repository for pictures and other media files for the deceased. You may therefore want to make sure that your family or executors have access to the account so that these may be saved to a folder somewhere. Similar issues apply to sites such as Flickr and Picasa where pictures can be hosted.
Commercial Accounts
Finally, you will need to make sure that your executors know which commercial accounts you have so that these can be notified not to take any further payments from your estate.
You may, for example, be a member of LoveFilm or have an ITunes Account. All providers of such accounts will need to be notified of your death so that payments can be suspended - if only to prevent unauthorised access to the account.
However, you need to bear in mind that in the case of companies such as ITunes, a limit on the account status may also limit the ability of others to use music or other resources which have been purchased. Thus, whilst Apple has a way to completely delete an iTunes account, they do not recommend doing this because if the account is cancelled mo one will be able to re-download or upgrade Apps that you have purchased or authorize new computers to play content you have previously purchased. Rather than cancelling an iTunes account, your executors might want to think about a way that allows full access to the items purchased that are subject to digital-rights management (DRM) but prevents new purchases. This can be done by removing billing information or disabling (as opposed to deleting) the account. You are advised, therefore, to leave a comprehensive list of all of the commercial accounts that you access and details of how they can be accessed so that your executors can take the appriopriate steps.
Conclusion
To conclude, the simple message is to make sure that you keep secure records of your online activity and that you have these records stored somewhere where those who will be administering your estate after your death can access them.
Think about choosing executors who have the specialist skills to be able to deal with your digital legacy.
Think about whether that legacy has a financial value and how that value can be realised in the event of your death.
If there are specific instructions about the way in which something needs to be managed, think about putting these in a document other than your Will that will be given to your executors.
Bear in mind copyright issues - both in relation to copyright you own and that of others.
Finally, make sure that in the event that you should die, information which could cause distress to family or loved ones or which you would prefer not to become public knowledge in the event of your death is securely and inaccessibly stored or deleted.